Cook v. Erwin

• Decision Date: 14 January 1911
• Citation: 133 S.W. 897
• Parties: COOK et al. v. ERWIN et al.
• Court: Texas Court of Appeals

133 S.W. 897

COOK et al. v. ERWIN et al.

Court of Civil Appeals of Texas.

January 14, 1911.

Appeal from District Court, Tarrant County; W. T. Simmons, Judge.

Action to quiet title by S. W. Cook and another against M. J. Erwin and others. From a judgment for defendants, plaintiffs appeal. Reversed and remanded.

A. J. Clendenen, for appellants. C. M. Templeton, for appellees.

DUNKLIN, J.

This appeal is from a judgment denying appellants a recovery of an undivided one-fifth interest in 200 acres of land. Plaintiffs and defendants claimed under James Holland as a common source of title. Plaintiffs introduced in evidence a deed to the land in controversy from James Holland to Martha J. Holland and the children of herself and her deceased husband, Mordecai Holland, the son of James Holland. There were four of those children, namely, Mrs. Mary Cook, wife of S. W. Cook, plaintiffs, and Mrs. Lou Boydston, Mrs. Ada Heatley, and Ira Holland, all of whom were made codefendants with Mrs. Martha J. Erwin, formerly Mrs. Martha J. Holland, she having remarried after the death of her former husband, Mordecai Holland. The deed referred to above was dated May 8, 1874, reciting a consideration of $1,500 paid to the grantor by M. F. Holland. The undivided one-fifth interest in the land which purports to have been conveyed to Mrs. Cook by this deed was the interest which she sought to recover.

Mrs. Erwin relied upon an alleged parol gift of one half of the land by James Holland to her former husband, Mordecai Holland, during her marriage with the latter, a parol gift of the other half of the land by James Holland to his daughter, Mrs. L. H. Cooper, the purchase of that half from Mrs. Cooper by Mordecai Holland, and a claim of homestead on the land ever since the death of Mordecai Holland in 1873. The evidence seems to show beyond controversy that James Holland agreed, in parol, to give to his son Mordecai Holland, and to his daughter, Mrs. L. H. Cooper, each one-half of the land; that in 1866, upon the faith of these agreements, both donees moved upon the land with their families. After occupying and cultivating one-half of the land for two years, Mrs. L. H. Cooper and her husband sold the same to Mordecai Holland for an agreed consideration of $1,500, of which $300 was paid by Mordecai Holland and the balance by defendant, Mrs. M. J. Erwin, after his death, but this seems to have been a parol sale. After Mordecai Holland moved on that portion of the land which his father agreed to give him, he continued to use and cultivate it up to the date of his death. He also used and cultivated the portion which his father had agreed to give his sister, Mrs. Cooper, from and after the date of his purchase of her interest. The evidence seems to show, further, that the use and occupancy of the land by Mordecai Holland and his sister was without objection on the part of their father, and that Mordecai Holland made some improvements on the land. Defendant Mrs. M. J. Erwin testified that the deed in favor of herself and her children executed by James Holland after the death of her husband was never delivered to her, that she never paid any consideration therefor, knew nothing of it until long after its execution, and that she never claimed any interest thereunder. She further testified without controversy that taxes had been paid upon the land by her husband and herself ever since the gift. However, she failed to prove the value of any of the improvements made on the land by her husband, and also failed to prove the value of the land at the time the improvements were placed...